What the Obama administration’s transgender policy means for bathroom bills in Illinois

When the Obama administration announced May 13 that it would be taking groundbreaking steps toward transgender equality, the decision may have signaled the end of a controversial bill in Illinois.

House Bill 4474, drafted by Republican state rep Thomas Morrison, would limit the bathroom access of transgender students on the basis of biologically defined gender. According to the legislation, gender would be "determined by an individual's chromosomes and identified at birth by that individual's anatomy."

The bill, introduced in the General Assembly in January, made Illinois one of nine states—including Missouri, South Carolina, and Kansas—considering legislation that would bring the national bathroom debate to their state.

On May 4, Vanita Gupta, principal deputy assistant for the U.S. Department of Justice, sent a letter to North Carolina governor Pat McCrory arguing that HB 2 is not only dangerous, but violates federal law. Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex, which Gupta argued should be extended to gender identity.

"Today, the Department of Justice and the entire Obama administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward," Lynch said. "Please know that history is on your side."

Per a 25-page document that will be sent to schools across the country, the federal government is advising universities and K-12 institutions to allow trans students to use the bathroom, changing room, and locker room that most closely corresponds with their gender identity, rather than the sex they were assigned at birth.

These developments have been of interest not only to the American public but also Illinois residents eyeing the potential passage of HB 4474 in future legislative sessions.

Morrison says that his intent in introducing the bill was to ensure that schools have an "objective standard" to follow in granting students access to bathrooms and locker room facilities.

"When those students are in various states of undress [or] completely undressed, the administration is saying that there will be no objective standard," he says. "It is a completely subjective standard, and we're going to grant access based on what one person feels, and ignore the rights and feelings and privacy of all the other students who must use that space."

But Harper Jean Tobin, policy director for the National Center for Transgender Equality, says the proposed Illinois law would be extremely difficult to enforce—the only way to comply would be to force every student in Illinois to undergo DNA testing.

"That is the only way to do it," Tobin said. "I don't know anything about my chromosomes. I've never had them tested."

Estimates suggest that there are 2.1 million students currently enrolled in Illinois schools, while the DNA Diagnostics Center reports that a DNA test costs anywhere between $159 to $459. Thus, implementing HB 4474 could cost the state between $333 and $963 million.

Morrison, however, says these guidelines don't have to be "financial or a logistical burden" placed on schools. "The fact that Illinois does not have a budget is a major concern of mine," he says.

To prevent the exorbitant cost that DNA testing might entail, Morrison suggests that tests could be implemented as part of students' physical exams. "Every student has to have a physical," he says. "I think it's reasonable that when a student has their physical, the doctor indicates whether the student is male or female."

But Anthony Martinez, the executive director of Chicago's Civil Rights Agenda, argues that the legislation isn't meant to be realistic. Rather, he claims, it was introduced as a means of "retaliation."

Morrison represents Palatine, the Chicago suburb that recently filed a federal lawsuit with the Obama administration to challenge its policies on Title IX. In 2015, a trans high school student at William Fremd High School filed a federal complaint that staff wouldn't allow her to use the locker room, citing it as a safety concern. District 211 was forced to comply with the administration's guidelines.

The issue has already been settled by the state, Martinez argues.

"Illinois has included gender identity in the Human Rights Act for more than a decade," he says. "Transgender individuals are protected, and by law, should be able to use the bathroom or locker room that corresponds with their gender identity. The leadership of both the [Illinois] House and the Senate do not have an interest in debating this issue again."

Currently, Illinois is one of just 19 states—plus Washington, D.C.—that provide nondiscrimination protections on the basis of both gender identity and sexual orientation.

In addition to having "some of the strongest anti-discrimination laws" in the country, Martinez says, the Prairie State has long stood for the protection of its transgender residents. "Sixteen local ordinances include gender identity, and the Illinois Human Rights Act also includes gender identity," he says. "It has not caused a problem anywhere in the decade it has been in effect."

That doesn't mean that HB 4474 is dead. The bill, which was cosponsored by 29 House representatives, including six Democrats, was tabled for the year, but it's likely to be reintroduced in 2017.

"I think we will see an onslaught of attacks on transgender and gender nonconforming folks, as well as the lesbian and gay communities in Illinois, which mirror what we are seeing across the nation," Martinez predicts. "The LGBT community must continue to be vigilant and fight back forcefully against any attack on our rights."

Still, Ed Yohnka, communications and public policy director for the Illinois ACLU, believes that the Obama administration's guidance can help further a culture of understanding in Illinois schools, combating the fear he says bills like HB 4474 foster.

"School districts will be able to look at these suggestions that were offered by the administration," Yohnka says. "They'll see what their legal responsibility is under Title IX and they'll be able to really look at how they can implement policy that is inclusive. . . . Those policies will work because they're working in other places."

Morrison says, though, that he supports a "compassionate compromise" for students, including "reasonable accommodations" for trans students. These would include allowing trans youth to use gender-neutral bathrooms (such as those found in faculty lounges) and the coach's locker rooms. Most schools already have these amenities, he says.

Illinois schools, however, are already coming up with their own affirming policies for trans students. Lynch's statement coincided with a revised set of guidelines issued by Chicago Public Schools to help the district comply with best practices in advising its transgender population.

The new policy, announced on May 4, updated previous rhetoric that had been unclear on facility use for trans students. CPS guidelines now clarify that trans students, faculty, and staff are permitted to use the restrooms and locker rooms that match their gender identity. The new policy also allows trans students to go on overnight trips with other students.

While bills like HB 4474 will continue to be introduced, Tobin argues that anti-trans legislation faces an uphill battle in a post-Loretta Lynch political climate.

"People in this country are increasingly, rapidly getting to know who transgender people are—that they're their neighbors and their family members and their coworkers," she says. "And it's very quickly going to be increasingly hard to stoke these nebulous fears that anti-trans measures depend on."

"There's no doubt we're seeing some ugly stuff in the meantime," Tobin continues, "but the trend is very much toward more understanding."